Fusco v. Bullowa

17 Misc. 573, 40 N.Y.S. 676, 75 N.Y. St. Rep. 80

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 15, 1896
• Status: Published

Opinion

Bischoee, J.

The plaintiff sued to recover upon- the defendant’s agreement with him to pay the usual broker’s commissions in consideration of the former’s procurement- of a lessee for certain real property.

The judgment of the court below, which was in the plaintiff’s • favor, was predicated of the fact that he had procured one Francesco Pennachio to sign the following instrument with the defendant:

“Hew York, December 2, 1895. Received from Mr. Francesco Pennáehio $50 on account of the deposit of $400, to be paid on. the signing, óf the lease for No. 100 Mott street, from January 1, 1896. Lease to be signed on Wednesday, at 12 o’clock, December 4, 1895. Lease to he for ten years.”

Pennachio had subsequently refused to execute the lease:

That the- instrument above set forth effected nothing more than an option on Pennachio’s part to enter into a future lease, the terms of which remained to be agreed upon, is apparent from mere inspection. It does not even specify what rent the lessee was to pay, or how he was to pay it. The minds of the parties had not met. It was, therefore, not a. lease, nor an agreement for a lease, and was equally unenforcible against Pennachio at law and in equity. Levy v. Kottman, 11 Misc. Rep. 372.

The Statute of Frauds (R. S., chap. 7, tit. 1, §§ 6, 8, 3 Banks Bros. 7th ed.) required the lease, exceeding one year, to be in writing, and the duty of the plaintiff, the' performance of which Was a condition precedent to his right of recovery, to procure a person to enter into a valid and enf creíble lease,. or agreement for a lease (Condict v. Cowdrey, 139 N. Y. 234; Levy v. Kottman, supra), was not fulfilled.

The judgment should be reversed and a new trial had, with costs to appellant to abide the event.

■ Daly, P. J., and MoAdam, J., concur.

■Judgment reversed- and new trial .ordered,-.with costs to appellant to abide event..